Gavin Howe
Case law and legislation are two distinct concepts within the legal system. Case law, also known as common law or judge-made law, refers to the decisions made by courts that establish and refine legislative law. It involves interpreting statutes and applying precedents to determine the law applicable to a specific case. On the other hand, legislation is the primary source of law, encompassing Acts of Parliament or statutes, and forms the basis of a country's legal system. While legislation attempts to control future activity, case law evolves through judicial decisions that interpret and apply the legislation to specific scenarios, potentially refining or establishing new aspects of the law in the process. The interplay between case law and legislation is dynamic, with each influencing and shaping the other in a continuous legal evolution.
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What You'll Learn
Case law refers to decisions made by courts
Case law and legislation are not the same. Case law refers to decisions made by courts or similar tribunals, whereas legislation refers to laws that are enacted by a legislative body. Case law is based on precedents, which means that it relies on the decisions made in previous cases to determine the outcome of a current case.
In common law countries, including the United Kingdom, United States, and others, case law is used for judicial decisions of selected appellate courts, courts of first instance, and other bodies. Common law courts generally provide detailed explanations of the legal rationale behind their decisions, including citations of legislation and previous relevant judgments. This analysis, called ratio decidendi, constitutes a precedent that is binding on other courts.
In contrast, civil law jurisdictions, such as Quebec and Louisiana, have court decisions that are typically shorter and refer only to statutes. This is because civil law jurisdictions believe that the reader should be able to deduce the logic from the decision and the statutes. While civil law traditions may be influenced by common law traditions, their substantive law is rooted in civil law.
The process of applying case law involves interpreting statutes and applying precedents. Precedents record how and why prior cases have been decided, and according to stare decisis, lower courts should make decisions consistent with the previous decisions of higher courts. However, there are instances where a judge may act against precedent, and if the case is not appealed, the decision will stand.
Case law can be accessed through various sources, such as printed reporters, online databases, and websites that provide free access to case law, such as Justia. These sources provide access to court decisions, opinions, and citations, enabling researchers and practitioners to understand the legal rationale and apply it to ongoing cases.
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Legislation includes Acts of Parliament
Case law and legislation are not the same. Case law refers to the judicial decisions and precedent-setting judgments of courts, which are used to guide future court rulings on similar cases. On the other hand, legislation refers to the laws and statutes enacted by a governing body, such as a parliament or council. This includes Acts of Parliament, which are a form of primary legislation.
Acts of Parliament are a key component of legislation. In the UK, a draft piece of legislation is known as a bill. Once this bill is passed by Parliament, it becomes an Act and part of the statute law. A bill is introduced to Parliament along with supporting documents, including explanatory notes, a policy memorandum, and a financial memorandum. The bill then undergoes scrutiny and may be amended before being passed. An Act of Parliament is a law that is enforced in all areas of the UK where it is applicable. It can come into force immediately, on a specific future date, or in stages, as indicated in the 'Commencement' section of the Act.
There are two types of Acts: public and private. Public Acts apply to the entire UK or specific constituent countries, such as England, Scotland, Wales, or Northern Ireland. Private Acts, on the other hand, are more local and personal in their effect. They grant special powers to bodies like local authorities or make exceptions to the law in particular geographic areas.
The texts of most Acts of Parliament, as originally passed, are available on the Legislation.gov.uk website. The Parliamentary Archives also hold copies of original Acts dating back to 1497. It's important to distinguish between the original Act and any revised versions that incorporate changes made by subsequent legislation.
Acts of Parliament can be amended or repealed through the passing of new Acts or delegated legislation. Parliamentary committees play a role in reviewing and recommending the removal of outdated legislation. While Parliament is not responsible for implementing the legislation, they can scrutinize its implementation by the government and evaluate its impact.
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Common law courts vs civil law courts
Case law and legislation are not the same. Case law is a body of law that is primarily developed through judicial decisions, whereas legislation is created by lawmakers or parliament. Case law is also known as common law, and it is deeply rooted in stare decisis, which means "to stand by things decided".
Common law, or case law, is a body of unwritten laws based on legal precedents established by the courts. It is used for judicial decisions of selected appellate courts, courts of first instance, agency tribunals, and other bodies discharging adjudicatory functions. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066.
Common law courts generally explain in detail the legal rationale behind their decisions, with citations of both legislation and previous relevant judgments. The necessary analysis, called ratio decidendi, then constitutes a precedent binding on other courts. Common law courts follow the doctrine of stare decisis, by which most courts are bound by their own previous decisions in similar cases.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. Civil law jurisdictions adhere to the tradition that the reader should be able to deduce the logic from the decision and the statutes. Civil law is regularly updated, and the goal of standardized codes is to create order and reduce bias in the system.
The United States operates under a dual system of both common and civil law. The US federal courts, for example, operate under common law. The UK also operates under a dual system, with the Supreme Court of the United Kingdom serving as the final court of appeal for civil law cases in England, Wales, and Northern Ireland.
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The doctrine of stare decisis
Case law and legislation are not the same. Case law refers to the law established by previous court decisions. Legislation, on the other hand, refers to the laws and Acts passed by Parliament or a similar governing body. An Act passed by a governing body can replace or add to common law, and common law can be used to interpret the Act.
For example, in the United States, the Supreme Court's decision in Brown v. Board of Education (1954) directly overturned the precedent of Plessy v. Ferguson (1893). Plessy held that "separate but equal" public accommodations did not violate the Constitution. However, the history of segregation in America proved that "separate" did not usually result in "equal". About 60 years later, the Supreme Court recognized this fact and decided in Brown that racially segregated schools violated the Constitution.
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Interpreting and applying precedents
Case law and legislation are not the same. While legislation is the law enacted by a country's legislative body, case law is the law that comes from judicial decisions and the application of legal precedent. Interpreting and applying precedents is a crucial aspect of the common law system.
Interpreting Precedents
The interpretation of precedents is an essential aspect of the common law system. Precedents are established when an appellate court resolves a legal question, and its determination becomes a precedent that lower courts must follow in similar cases. This is known as the doctrine of stare decisis, which means "to stand by things decided." The doctrine ensures that lower courts adhere to the decisions of higher courts in comparable cases, promoting consistency and stability in the law.
When interpreting precedents, courts consider the ratio decidendi, which is the legal rationale behind a previous decision. The ratio decidendi constitutes the binding precedent that other courts must follow. However, it is important to note that the ratio decidendi may not always be clear, and subsequent courts may have some flexibility in interpreting the ratio of the earlier decision.
In some cases, courts may also refer to obiter dicta, which are additional comments or observations made by judges that are not essential to the outcome of the case. While obiter dicta are not binding, they can be persuasive and may influence the interpretation of the law.
Applying Precedents
When applying precedents, lower courts must follow the decisions of higher courts in similar cases. This ensures a uniform application of the law and promotes predictability in legal outcomes. However, there may be instances where lower courts feel that following a precedent would lead to an unjust result. In such cases, the lower court may express its disagreement with the precedent but must still apply it unless it has been overturned or distinguished.
Courts may also consider persuasive precedents, which are decisions from other jurisdictions or higher courts that are not binding but may be convincing due to their reasoning. Persuasive precedents can guide courts in interpreting unclear laws or addressing novel legal issues.
Evolution of Precedents
Over time, the interpretation and application of precedents can evolve as legal reasoning develops. Precedents viewed over time can establish trends, indicating the direction in which the law may be heading. Additionally, scholars and legal professionals may apply network theory to precedent to determine the most important or authoritative precedents and how interpretations have changed.
Courts may also choose to depart from precedent in certain circumstances. For example, if a court finds that a precedent is inconsistent with subsequent authority or that there is a material difference between the facts of the current case and the precedent. However, the decision to depart from precedent is not taken lightly and requires a careful consideration of legal principles and the potential impact on the stability of the law.
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Frequently asked questions
Case law refers to the decisions made by the courts, which can establish and refine legislative law. It is also known as common law or judge-made law.
Legislation refers to the Acts of Parliament or Statutes that form the basis of a legal system. It attempts to control future activity and includes subordinate or delegated legislation, such as regulations.
Case law is made by judges, whereas legislation is created by the legislative body, such as Parliament. Case law evolves over time as judges interpret and apply existing laws to new situations, setting precedents for future cases. Legislation, on the other hand, is more static and requires a formal process to be amended or updated.
Yes, an Act of legislation can overrule common law if both apply in the same area. However, legislation may not cover or predict every possible scenario, so courts may interpret and refine the legislation through their decisions, creating case law.
Yes, common law systems and civil law systems approach case law and legislation differently. Common law systems, prevalent in countries like the UK and US, heavily rely on case law and follow the doctrine of stare decisis, where courts are bound by their previous decisions. Civil law systems, on the other hand, tend to have shorter court decisions and place more emphasis on statutes and academic interpretation.
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